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VITIATING ELEMENTS OF CONTRACT AS A SOURCE OF

CONTRACTUAL VALIDITY
By
Duru, Onyekachi Wisdom Ceazar
(Email: onyekachiduru@gmail.com; Tel: +234-8037707496)
View my research on my SSRN Author page: http://ssrn.com/author=1874278.

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Abstract
A ‘vitiating element of contract’ is the technical
term for the things which make a contract void or
voidable. Vitiating factors in a contract are those
factors the existence of (any of) which will cripple
or invalidate the contract. Vitiating elements of
contract such as mistake, duress,
misrepresentation, undue influence and illegality,
are determinants of the validity of a contract. They
are the various factors which can affect the
validity of a contract once it has been formed. The
implication of which is that the validity of a
contract is normally unquestioned when vitiating
elements are absent. It is against this background
that this essay has examined vitiating elements of
contract as source of contractual validity.

Introduction
Agreement is a universal phenomenon among the human race. It is as a
result of this that early men devised the idea of transacting business with one
another to satisfy their numerous but unsophisticated wants. This first took
the form of trade-by-barter and later, with the advent of a legal tender,
evolved into the concept of contract as it is understood today. The law of
contract now pervades virtually all spheres of human activities namely; sales
of goods, agency, hire-purchase, insurance, industrial or labour relations,
company law, partnerships, and so on.

Electronic copy available at: http://ssrn.com/abstract=2156749


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For there to be a valid contract, parties are expected to be ad idem


while agreeing on the terms of the contract. Where they are not, such contract
will be void. Again, a contract which is regular in all respects in the sense
that all the constituent elements of offer, acceptance, consideration, intention
to enter into legal relations and capacity are present, may nevertheless be
invalid because there is no real consent to it by one or both of the parties. In
such cases, there is no consensus ad idem (meeting of the minds or copulation
of the minds). Consent may be rendered unreal by mistake,
misrepresentation, duress, and undue influence. There are also instances of
inequality of bargaining power where it will be inequitable to enforce the
resulting agreement. It is against this background that this essay argues that
the validity of a contract is normally unquestioned when vitiating elements
are absent.
Vitiating Elements of a Contract
The parties to a contract must have agreed to the terms of their
contract. It must indeed be very clear that they have agreed freely, without
some form of compulsion or some other defect which may make the
apparently valid contract defective. Where there is such an element which
may spoil or make such contract defective, such an element is known as a
vitiating element. Vitiating factors is the technical term for the things which
make a contract void or voidable. Vitiating factors in a contract are those
factors the existence of (any of) which will cripple or invalidate the contract.1
The vitiating elements to be considered are mistake, misrepresentation,
duress, undue influence and illegality. The nature of the vitiating element
determines the kind of defect the contract may have, the contract may not be
enforceable at all, it may be enforceable in certain ways or manners, or there
may be no contract at all.

1
E. Essien, General Principles of Nigerian Law Fourth Edition (Uyo: Toplaw Publishments Ltd., 2012) at
171.

Electronic copy available at: http://ssrn.com/abstract=2156749


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Mistake
The doctrine of mistake in law is all about circumstances in which the
law permits a party to a contract to repudiate and resile out of it, on the
grounds that had the true position of the facts been known to him, he would
never have entered into the agreement. The general rule is that the mistake of
a party does not affect the validity of a contract. In essence, the parties are
bound by the terms agreed between them and neither can escape his
obligations under the contract by claiming that the agreement was not what
was intended. Likewise, mistake of law never affects the validity of a contract
since ignorance of the law never avails a party, otherwise every party will
plead that he was mistaken as to the law.
However in some circumstances mistake of fact may affect a contract,
and if sufficiently serious may spoil the contact, render it void. These include;
mistake as to the existence or identity of the subject matter of the contract or
mistake as to the kind of contractual document signed or as to its contents. 2
Proof of mistake in any of the above cases renders the contract void ab initio
and no right can be derived therefrom. In other words, the contract is a total
nullity conferring no rights and imposing no obligations.3 But, to have any
effect at all, the mistake must be one which exists at the moment the contract
is concluded.4
Misrepresentation
Simply defined, a misrepresentation is a false statement of fact made
by a party to the contract which is one of the causes which induces the other
party to enter into the contract. A misrepresentation is a false statement of
fact relating to the past or present, made by one party to a contract to the
other, which induces the latter to enter into the contract.5 A representation is

2
Saunders v. Anglia Building Society (1970) 3 All ER 961.
3
However, a person who has been adversely affected may still have a remedy at equity.
4
Amalgamated Investment and Property Co. Ltd. V. John Walker & Sons Ltd. (1976) 3 All ER 509.
5
E. Essien, op. cit. at 179.
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an inducement only and its effect is to lead the other party merely to make the
contract. A representation must be a statement6 of some specific existing and
verifiable fact or past event. It becomes a misrepresentation,7 of course, when
it is false.8
Misrepresentation is an expression used to describe a situation in
which there is no genuineness of consent to a contract by one of the parties.
Misrepresentation may be innocent, negligent or fraudulent. The effect of
misrepresentation on a contract is less serious than that of mistake because
the contract becomes voidable and not void. This means that the party
mislead can ask the court to rescind the contract, that is to put the parties back
into the positions they held before the contract was made.
Duress
Duress will affect all contracts and gifts procured by it use. Duress is
pressure brought to bear upon one of the contracting parties to induce him to
enter into the contract. Duress, which is a common law concept, means actual
violence or threats of violence to the person of the contracting party or those
near and dear to him. The treat must be calculated to produce fear of loss of
life or bodily harm.9 Also, the threat must be illegal in the sense that it must
be a threat to commit a crime or a tort.10 Duress vitiates a contract. However,
it must be established that the threats were a reason for entering into the
contract, but, it not be shown that they were the only or even the main
reason.11

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The Statement must have been intended to be acted upon and must have actually induced the other party to
make the contract.
7
Misrepresentation is generally not incorporated into the contract, because if it is incorporated into the
contract, it becomes a term of contract and depending on whether it is a condition or warranty determines the
type of liability that results.
8
However, a statement which is not entirely false but a half-truth may be a misrepresentation. Thus, in
Dimmock v. Hallett (1886) LR. 2 Ch. App. 21, it was held that a statement that a property was let, and
therefore producing income, was a misrepresentation because it was not revealed that the tenants had been
given notice.
9
Kaufman v. Gerson (1904) 1 KB 591.
10
Thus, to threaten an imprisonment that would be unlawful if enforced constitutes duress, but not if the
imprisonment would be lawful: Cumming v. Ince (1847) 11 QB 112.
11
See Barton v. Armstrong (1976) AC 104; (1975) 2 All ER 465.
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Undue Influence
The doctrine of undue influence was developed by equity. The concept
of undue influence is designed to deal with contracts obtained without free
consent by the influence of one mind over another. Undue influence means
any improper or wrongful constraint, machination, or urgency, or persuasion
whereby the will of a person is over-powered and he is induced to do or
forebear an act which he should not do or do if left to act freely.12 It is
influence which deprives the person influenced of free agency or destroys the
freedom of his will and renders it more of the will of another person. It
connotes a misuse of a position of confidence or taking advantage of a
person’s weakness, infirmity of distress, to change improperly that person’s
actions or decisions. Undue influence applies where influence is acquired and
abused and confidence is reposed and betrayed.
The effect of undue influence is to allow the weaker party to rescind
the contract promptly after the withdrawal of the overbearing influence;
otherwise it will be termed as consent. It also renders a contract voidable and
not void. Accordingly, to maintain the plea of undue influence, the party
concerned must apply timeously to avoid the contract and must not be guilty
of undue delay.
Additionally, for a defendant to succeed on his claim of undue
influence, he must prove by credible evidence the existence of such by
establishing the following five mandatory requirements: (a) that the other
party to the transaction had the capacity to influence the complainant, (b) that
the influence was exercised, (c) that the exercise was undue, (d) that the
exercise brought about the transaction in question, and (e) that the transaction
was to the manifest disadvantage of the complainant.13

12
First Bank of Nigeria Plc. V. Akinyoseye (2005) 5 NWLR (Pt. 918) at 340.
13
Failure to prove any of the above stipulations would be fatal to the complainant’s case.
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Illegality
As a general rule, the court will not enforce a contract which is illegal
or contrary to public policy. Illegal contracts are those prohibited either by
statute or at common law and the making of which will in most cases be
visited by some form of sanction other than merely declaring the contract
void and unenforceable. Illegal contracts include: a contract to commit crime,
a tort or a fraud on a third party; a contract that is sexually immoral; a
contract which is prejudicial to public safety; a contract liable to corrupt
public life and a contract to defraud public revenue. A contract which is
adjudged illegal will not be enforced. Such a contract will be absolutely void
and of no effect whatsoever.
Conclusion
It is clear from the foregoing that vitiating elements of contract such as
mistake, duress, misrepresentation, undue influence and illegality, are
determinants of the validity of a contract. They are the various factors which
can affect the validity of a contract once it has been formed. The implication
of which is that the validity of a contract is normally unquestioned when
vitiating elements are absent.

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